U.S. Death Penalty Report Cites Value of Taping Interrogations

The United States and Japan are the only countries in the 34-member Organisation for Economic Co-operation and Development that retain the death penalty. Photo: Lethal injection room, built in 2010 in San Quentin State Prison, California. Public domain photo: California government

The crime was brutal: Rebecca Lynn Williams, a 19-year-old American mother of three, was raped and later stabbed 38 times, left dead in her home in rural Virginia in June 1982.

Justice was swift: Earl Washington, a local farmhand with an IQ of 69, confessed to the crime less than a year later and was sentenced to death in January 1984.

And, fortunately, a gross legal mistake was eventually caught: After 17 years in prison, much of it on death row, Washington was freed, DNA evidence having made clear he had nothing to do with Williams’ rape and murder.

On May 7, an American report issued by a committee of legal experts cited the Washington case in urging that all interrogations of suspects in capital cases be videotaped. Such recordings, the committee said, help to prevent wrongful convictions by deterring police coercion and documenting how suspects with serious mental impairments are handled.

According to a 2004 study cited in the committee’s report, Earl Washington’s experience wasn’t isolated. More than 80 percent of 125 documented false confessions in the study occurred in homicide cases, and 20 percent of the defendants in those cases received death sentences.

The failure to record interrogations, the committee asserted, should be disclosed at any subsequent trial, with juries explicitly instructed to consider whether an unrecorded statement was coerced or made voluntarily.

The controversy over taping interrogations was at the heart of a ProPublica report last year. In it, we examined the murder case against 52-year-old disabled construction worker Pedro Hernandez. In 2012, Hernandez confessed to killing Etan Patz, a six-year-old boy who famously disappeared while walking to school in New York in 1979.

Hernandez has since recanted his confession, and his lawyers have argued that Hernandez only made it because he is mentally ill, borderline intellectually disabled and had been subjected to hours of unrecorded interrogation. The case is currently scheduled to go to trial this fall.

Several police stations in New York City are outfitted to video record police interrogations, but not all them, despite former Police Commissioner Ray Kelly’s 2012 pledge that the department would begin recording as a matter of policy. The practice is not currently required by state law.

A spokesperson for the New York Police Department didn’t immediately respond to phone calls and emails asking how new Police Commissioner William J. Bratton will handle the taping of interrogations.

The death penalty report, authored by a committee of former high-level prosecutors, judges, law enforcement officers and correctional officials, was issued by The Constitution Project, a nonprofit organization that neither supports nor condemns capital punishment. Instead, it says, it seeks to ensure that the penalty is used for those guilty of only the most heinous of crimes, such as murder; that it’s used fairly, and to the extent possible, safely.

The report comes on the heels of a botched execution in Oklahoma last week. State physicians struggled for nearly an hour to properly inject lethal drugs into convicted murderer Clayton Lockett before he died of a heart attack. The event, and descriptions of Lockett writhing in pain, reignited the national debate over the death penalty and caused President Obama to ask the attorney general to review it.

Going far beyond police and prosecutorial conduct, recommendations in the 208-page report also address some of the very issues that caused Lockett’s execution to be so problematic. It notes that states that allow capital punishment are struggling to purchase enough lethal drugs because some pharmaceutical companies and exporting countries object to the death penalty. To cope with the drug shortage, states have been experimenting with cocktails that combine a variety of different drugs. Lockett was injected with a three-drug combination that Oklahoma had never used before.

The committee is opposed to the practice.

“Jurisdictions should rely on the most current scientific knowledge to develop protocols that minimize the risk of pain or suffering which currently demands the adoption of a one-drug protocol,” the report said, adding that states should only use FDA-approved drugs.

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